Post-Divorce Modifications

Post-Divorce Modifications

Ex-spouses often find themselves in situations they didn’t anticipate when they divorced, especially when children are involved. When ex-spouses can’t agree on how to resolve a post-divorce dispute there is always recourse to the court as adversaries, asking a judge to modify or reverse a previous order or judgment. However, many post-divorce changes can be easily accommodated by agreement with little or no court involvement. When ex-spouses agree on the changes needed to adjust to new circumstances, there are three non-adversarial options available: verbal agreements, written agreements and joint petitions.

1. Minor changes are often made informally by verbal agreement – like changing a weekly parenting schedule. When parties verbally agree to a post-divorce modification the court is unaware of the change. If a verbal post-divorce modification is later contested by one of the parties, a judge may uphold it, ignore it, modify it, or enforce the court’s last order or judgment. Thus verbal, post-divorce modifications are the least reliable of the non-adversarial options if subsequently challenged – but when uncontested they are the most practical and probably the most common.

2. A well-drafted separation agreement can enable ex-spouses to make enforceable, post-divorce modifications in writing without returning to court. At minimum, a written, voluntary post-divorce modification should be signed, dated and notarized. If one party later contests a clearly written, fully executed post-divorce modification that has been freely negotiated and expressly provided for in their separation agreement, a court is likely to uphold it – especially when the parties have relied on it for a long time. Thus fully executed, voluntary post-divorce modifications can be as enforceable as if incorporated into the original separation agreement – but if it is subsequently contested, a judge will determine if it’s enforceable.

3. In 2000 a Massachusetts court of appeals ruled against the right of divorced parents to enter into a written, post-divorce agreement to lower the father’s child support below the court ordered amount. [Quinnv.Quinn, 49 Mass. App. Ct. 144 (2000).] The appeals court reasoned that parents may not bargain away the rights of their children without court approval. After Quinn the Probate and Family Court created a joint petition under Supplemental Rule 412 – establishing a procedure for a judge to ratify (modify or reject) reduced child support agreed by the parents after divorce.

In 2013, Supplemental Rule 412’s single-issue focus was vastly expanded. It now permits parties to jointly petition the court to modify a judgment or order on virtually any post-divorce issue – including alimony, custody, inheritance, asset transfers and child support. When both parties submit their agreement on a signed and notarized court form (and all the other requirements of Rule 412 are met) – a judge has 21 days to either allow the joint petition without a court appearance – or to compel additional information and/or a court appearance. If the agreement is approved no hearing is necessary, and both parties will receive a copy of the court’s decision in the mail within 30 days of filing all the required paperwork.

NOTICE: The law is constantly subject to change. While the legal information contained here is frequently checked for accuracy, please consult an attorney before relying on it. Furthermore, virtually all laws relating to families and domestic relations are state laws. Despite some similarities, there are significant differences between the laws of different states. The legal information contained in this web site is based on Massachusetts law.